Finding out that you have been left out of a will can be an emotional – and in the case of a parent or close family member – a potentially devastating realisation.

You may know why the will-maker chose to exclude you as a beneficiary, or it may come as a complete surprise. 

In any case, we recommend that you obtain legal advice as soon as possible after becoming aware that you have been left out of a will.

A lawyer will be able to review the facts and circumstances of the case and advise you of your rights which may include a right to bring a claim on the estate for provision (or further provision) or a right to take issue with the validity of the will on grounds which may include undue influence, suspicious circumstances, or a lack of testamentary capacity. 

A person may become aware that they have been left out of a will before the will-maker has even died where, for instance, the will-maker has told the person themselves or the person has received the information from a friend or relative who has knowledge of the will-maker’s will or wishes. 

In these cases, we recommend that you seek legal advice as soon as possible, regardless of whether the will-maker is still alive, to best ensure that a solicitor can help with protecting any rights or interests that you may have in the estate.

In some instances, a solicitor may be able to negotiate with the will-maker or their solicitor to reinclude you as a beneficiary or to release an inheritance early.  

What It Means to Contest a Will

In NSW, a person may contest a will by making a ‘family provision claim’ under the Succession Act 2006 (NSW).

The first step for the court is to determine whether the claimant is an ‘eligible person’ as defined in section 57 of the Succession Act 2006 (NSW). Eligible persons include spouses, de facto spouses, children, former spouses, wholly or partly dependent grandchildren or members of the deceased’s household, and those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death.

In the case of former spouses, wholly or partly dependent grandchildren or members of the deceased’s household, or those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death, the applicant must also prove that there are ‘factors which warrant the making of the application.’

Once the claimant is found to be an eligible person, the second step for the court is to consider whether adequate provision for the maintenance, education, or advancement in life of the eligible person has not been made by the will of the deceased person. 

If the court finds that the claimant is an eligible person and that adequate provision for the maintenance, education, or advancement in life of the person had not been made by the will of the deceased person, the court may adjust the terms of the will in favour of the claimant.

Who Can Contest a Will in NSW

In NSW, only a person who satisfies the definition of ‘eligible person’ as defined in section 57 of the Succession Act 2006 (NSW) can contest a will. An ‘eligible person’ includes: 

• A spouse of the deceased
• A de facto of the deceased
• A child of the deceased
• A former spouse of the deceased
• A grandchild of the deceased who is wholly or partly dependent on the deceased
• A member of the deceased’s household who is wholly or partly dependent on the deceased
• A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

In the case of a former spouse, a wholly or partly dependent grandchild or member of the deceased’s household, or those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death, the person must also show that there are ‘factors which warrant the making of the application’ to constitute an eligible person. In other words, there is an additional threshold that applies to these applicants.

I’ve been left out of a will; what are my next steps?

A person left out of a will usually becomes aware that they have been left out of a will after the will-maker has died once a copy of the will is shared or made public. In these cases, we recommend that you obtain legal advice as soon as possible. 

A lawyer will be able to review the facts and circumstances of the case and advise you of your rights which may include a right to bring a claim on the estate for provision (or further provision) or a right to take issue with the validity of the will on grounds which may include undue influence, suspicious circumstances or a lack of testamentary capacity. 

In some instances however, a person may become aware that they have been left out of a will before the will-maker has even died where, for instance, the will-maker has told the person themselves or the person has received the information from a friend or relative who has knowledge of the will-maker’s will or wishes. 

In these cases, we recommend that you seek legal advice as soon as possible, regardless of whether the will-maker is still alive, to best ensure that a solicitor can help with protecting any rights or interests that you may have in the estate. In some instances, a solicitor may be able to negotiate with the will-maker or their solicitor to reinstate you as a beneficiary or to release an inheritance early.  

What Happens Once You Make The Claim

Once you have received legal advice and you wish to proceed with contesting a will, the first step will typically involve your lawyer writing to the executor and other beneficiaries to notify them of your intended claim. This correspondence may contain a settlement offer thereby commencing the negotiation process. In some cases negotiations can achieve a quick and cost effective resolution, however, in other cases, negotiations can take months and ultimately prove unsuccessful. 

If negotiations and mediation do not resolve the dispute, you may decide to commence court proceedings. This is a significant step that involves the preparation of court documents and evidence and may expose you to cost orders. We recommend you obtain legal advice before commencing proceedings.

Once proceedings are commenced, the proceedings will be case managed in the court list and if ongoing negotiations fail to resolve the matter, the matter may proceed to a court hearing before a Judge. 

In NSW, a family provision claim must be commenced within 12 months from the date of the deceased’s death, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time.

What Will the Court Consider

The first step the court will consider when a person brings a family provision claim is whether the claimant is an ‘eligible person’ as defined in section 57 of the Succession Act 2006 (NSW). 

Eligible persons include spouses, de facto spouses, children, former spouses, wholly or partly dependent grandchildren or members of the deceased’s household, and those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death. In the case of former spouses, wholly or partly dependent grandchildren or members of the deceased’s household, or those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death, the applicant must also prove that there are ‘factors which warrant the making of the application.’

If the claimant is found to be an eligible person, the court will then consider whether adequate provision for the maintenance, education, or advancement in life of the eligible person has not been made by the will of the deceased person. In determining this question the court will consider in detail the 16 factors set out in section 60(2) of the Succession Act 2006 (NSW).

If the court finds that the claimant is an eligible person and that adequate provision for the maintenance, education, or advancement in life of the person had not been made by the will of the deceased person, the court may adjust the terms of the will in favour of the claimant.

Why Would Someone Be Left Out of a Will

A person may be left out of a will for many reasons. 

A person may be left out of a will for vindictive reasons. For example, the will-maker may decide to exclude a person from their will due to family conflict, estrangement, resentment or bitterness. 

A person may also be left out of a will for less vindictive reasons where for instance, a will-maker excludes a person because the person is already financially comfortable or wealthy. 

A person may also be left out of a will for entirely innocent reasons where for example, there has been an error during the drafting process or where a medical issue has had bearing over the will-maker’s testamentary capacity at the time of making the will. 

When should you make a claim?

In NSW, a person wanting to contest a will by bringing a family provision claim must be commenced within 12 months from the date of the deceased’s death, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time. 

We recommend that you contact a lawyer as soon as you become aware of a potential inheritance issue or dispute to obtain legal advice in relation to your rights and interests. We recommend that you obtain legal advice before commencing negotiations or formal proceedings. 

How Empower Wills and Estate Lawyers Can Help You

If you have been left out of a will or have received less than you were expecting, contact our expert inheritance lawyers now on 1300 414 844. 

We offer flexible fee structures tailored to each client’s circumstances and in some cases may be able to offer conditional or “no win no fee” agreements.

Want to learn more?

Read more about how to contest a will in NSW here.

Read more about how to stop someone contesting a will here.

Read more about the time limits in NSW for contesting a will here.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances.